On behalf of the petitioners-appellants, the cause was
submitted on the briefs of Matthew A. Biegert and Anne E. Schmiege of
Doar, Drill & Skow, S.C. of New Richmond.

Respondent

ATTORNEYS:

On behalf of the respondent-respondent, Midwest Coast
Transport, the cause was submitted on the brief of Janice A. Rhodes of
Kravit, Hovel, Krawczyk & Leverson, S.C. of Milwaukee.

On behalf of the respondent-respondent, Labor and Industry
Review Commission, the cause was submitted on the brief of David C. Rice,
assistant attorney general, and Peggy A. Lautenschlager, attorney
general.

On behalf of the respondent, Transhield Leasing Company,
the cause was submitted on the brief of James B. Sherman of Wessels
& Pautsch, P.C. of Minneapolis, MN.

2005 WI
App 229

COURT OF APPEALS

DECISION

DATED AND FILED

September 27, 2005

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2004AP3033

Cir. Ct. No.2004CV30

STATE OF WISCONSIN

IN COURT OF
APPEALS

Estate of Leon P. Szleszinski,
by its Special

Administrator and Darlene
Szleszinski,

Petitioners-Appellants,

v.

Labor & Industry Review
Commission and Midwest

Coast Transport,

Respondents-Respondents,

Transhield Trucking and
Transhield Leasing Company,

Respondents.

APPEAL
from a judgment of the circuit court for Washburn County:Eugene
D. Harrington, Judge.Reversed
in part and cause remanded with directions.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1HOOVER, P.J.The
Estate of Leon Szleszinski[1]
appeals a judgment of the circuit court affirming the Labor and Industry Review
Commission.LIRC reversed a
determination by an administrative law judge that Midwest Coast Transport
(Midwest) had wrongfully discriminated against Szleszinski when it terminated
his employment due to his disability.Szleszinski contends there is no factual or legal basis for LIRC’s
determination that Midwest had a valid safety defense to his allegations of
discrimination.We agree with
Szleszinski and reverse the judgment in part, thereby reinstating the ALJ’s
decision, and we remand for a calculation of Szleszinski’s attorney fees and
costs.

Background

¶2Szleszinski was hired as a commercial truck driver by
Transhield Leasing Company and was to start on June 21, 1995.Transhield leases its trucks and drivers to
Midwest exclusively.Transhield pays
the drivers, but Midwest can approve or reject drivers.Midwest also oversees driver safety,
including drivers’ federally required Department of Transportation
certification.Szleszinski has held his
commercial driver’s license since the early 1990s and has never had it
suspended or revoked.He always passed
his physicals, and his federal certification was valid through at least
December 1998.

¶3When Szleszinski was seventeen, he was diagnosed with
Wilson’s disease, a disorder that causes copper retention.Wilson’s can manifest as neurological
problems, liver disease, or other symptoms.Szleszinski’s diagnosing physician, however, called it a “very mild”
case and Szleszinski managed his disease with medication.

¶4Prior to starting with Transhield and Midwest, Szleszinski
had a physical examination performed by Dr. L. D. Carlson, who cleared
Szleszinski to drive under the applicable federal regulations.Midwest knew Szleszinski had Wilson’s when
it initially accepted him as a driver.Accordingly, it consulted with a physician’s assistant at Central Plains
Clinic, an affiliate of Occupational Health Associates of South Dakota
(OHA).Midwest typically relied on OHA
for medical certification of its drivers.The physician’s assistant concluded Szleszinski met the Department of
Transportation standards, and Szleszinski began driving for Midwest.

¶5In March 1996, Midwest received two complaints of erratic
driving against Szleszinski.Szleszinski did not remember either incident.While the general practice for a driving report was to confer
with the employee about safe driving habits, Midwest requested Szleszinski be
medically re-evaluated.Carlson
examined Szleszinski again and recommended he see a neurologist.Midwest made arrangements through OHA for
Szleszinski to see Dr. Ali Choucair, a neuro-oncologist.Choucair noted that Szleszinski had some
neurological impairment and suggested further testing, including a road test,
but ultimately concluded: “His deficit I do not believe is such that
will prevent him from operating a motor vehicle.”

¶6Midwest then sent Szleszinski’s medical records, including
Choucair’s report, to Dr. Dana Windhorst at OHA.Windhorst reported:

The neurological examination did indicate some mild
neurological deficits, specifically in the area of coordination ….

In addition, there is the history, apparently twice, of
this driver being observed to swerve on the highway suggesting some problem
with functional coordination during his driving.

Wilson’s disease is a progressive neurological disease,
and this is of grave concern, given the responsibilities of driving large
commercial vehicles on the highways.The Department of Transportation Conference on Neurological Disorders
and Commercial drivers, dated July 1988, recommends, without exception,
disqualification for individuals with confirmed diagnosis of Wilson’s
disease.Putting all this together, I
cannot make a recommendation for this individual to be medically certified for
DOT licensure.It is also my opinion
that, regardless of the results of psychometric testing and MRI, that I
would not change this recommendation.(Emphasis added.)

¶7Based on Windhorst’s report, Midwest informed Szleszinski on
March 26, 1996, that it no longer considered him qualified to drive for
Midwest, effectively ending his employment.Following his disqualification, Szleszinski privately saw a neurologist
and a radiologist.The neurologist
reported no impact on his ability to drive, finding he fell within the
Department of Transportation safety guidelines, and the radiologist reported a
normal MRI.There is also no indication
that Szleszinski ever lost his federal certification and he continued to work
as a driver until his death in 1999.

¶8In 1996, and as amended in 1998, Szleszinski commenced an
action against Midwest and Transhield under the Wisconsin Fair Employment Act
(WFEA), Wis. Stat. § 111.31-111.395,
alleging discrimination because of a disability.[2]See Wis.
Stat. § 111.34.Midwest and
Transhield argued he failed to exhaust administrative remedies under federal
regulations and moved for summary judgment.The ALJ denied the motion on procedural grounds and ultimately ruled in
Szleszinski’s favor.The ALJ awarded
back pay with interest, costs, and attorney fees.The ALJ also held that Midwest, not Transhield, was the employer
for WFEA purposes.

¶9Midwest appealed to LIRC, arguing that while Szleszinski had
made a prima facie case for unlawful discrimination, it had a valid safety
defense under the WFEA.LIRC agreed
that Szleszinski’s disability was reasonably related to his ability to work
safely, and reversed on what it considered to be “a different interpretation of
the relevant law.”However, LIRC agreed
with the ALJ that Midwest was Szleszinski’s employer under the WFEA.

¶10Szleszinski petitioned the circuit court for review.The court held that LIRC’s determination was
supported by credible evidence.Szleszinski appeals.

Discussion

¶11The scope of our review of an administrative agency decision
under Wis. Stat. § 227.57 is
the same as the trial court’s, and we review the agency’s decision, not the
trial court’s.Target Stores v.
LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998).

¶12“The complainant in a handicap discrimination case must show
that:(1) he or she is handicapped
within the meaning of the WFEA, and that (2) the employer took one of the
enumerated actions on the basis of handicap.”Id. at 9 (footnotes omitted).If the complainant makes the requisite showing, the burden shifts
to the employer to provide a valid defense under Wis. Stat. § 111.34.Target Stores, 217 Wis. 2d at 9.

¶13In this case, the underlying facts are undisputed.It is also undisputed that Szleszinski made
the required initial showing.Szleszinski argues LIRC erred when it concluded Midwest had a viable
defense under WFEA.This involves application
of a statute to a set of facts, ordinarily a question of law that we review de
novo.SeeBrown v. LIRC,
2003 WI 142, ¶11, 267 Wis. 2d 31, 671 N.W.2d 279.However, when we review an administrative
agency decision, simply labeling an issue a question of law does not mean we
may automatically disregard the agency’s determination.Seeid., ¶12.

¶14Whether we independently apply the law to the facts or defer in
some way to the agency depends on the particular action on review.Id.We have a three-tier approach to an agency’s interpretations of
law:we give no deference, due weight
deference, or great weight deference to an agency depending on the comparative
institutional capabilities and qualifications of the court and the agency.Id., ¶13.

¶15We have previously held LIRC should be entitled to great weight
deference in the application of various aspects the WFEA.SeeHutchinson Tech., Inc. v.
LIRC, 2004 WI 90, ¶10 n.6, 273 Wis. 2d 394, 682 N.W.2d 343
(whether an individual is disabled); Target Stores, 217 Wis. 2d
at 13 (whether reasonable accommodations were made).The same factors used to support great weight deference in those
cases would equally apply to LIRC’s determination whether an employer has a
valid defense under Wis. Stat. § 111.34.However, even under the great weight standard,
the agency’s determinations are not controlling.Target Stores, 217 Wis. 2d at 16-17.

¶16Before we turn to LIRC’s decision regarding Midwest’s defense,
however, there are two threshold issues.The first is whether Szleszinski had to exhaust his remedies under
federal rules.For this determination,
we owe LIRC no deference, as LIRC is not charged with administering these
provisions of federal law.It therefore
is in no better position than we are to make this determination.The second issue is whether Midwest is
properly considered an employer under the WFEA, and LIRC’s determination on
that matter is entitled to great weight deference.We address these issues first because if we conclude Szleszinski
was required to exhaust his remedies under the federal rules or the WFEA does
not apply because Midwest is not an employer, our analysis would end.

Exhaustion
of Remedies

¶17LIRC ruled that Szleszinski “was not required to helplessly
accept Dr. Windhorst’s refusal to medically certify him.Federal regulations provide an appeal
mechanism through which disputed the DOT medical certifications can be
reviewed.”That “mechanism” is found in
49 C.F.R. § 391.47.[3]We are unconvinced that this section applies
in this case.

¶19More substantively, however, 49 C.F.R. § 391.47(b)(2)
states: “The applicant must submit proof that there is a
disagreement between the physician for the driver and the physician for the
motor carrier concerning the driver’s qualification.”Here, the disagreement is between two reports for the
carrier.When Carlson recommended
Szleszinski see a neurologist, Midwest elected Choucair, who essentially
certified Szleszinski even while recommending additional testing.[4]

¶20Midwest did not subject Szleszinski to additional testing
because Windhorst had subsequently concluded that “regardless of the results of
any tests, and based upon the July 1988 report … a person with Wilson’s disease
should be disqualified from driving.”Thus, Windhorst’s report disqualified Szleszinski even after Choucair
had cleared him.

¶21It is disingenuous for Midwest to create a disagreement by
seeking a second physician’s report after the first report was favorable to the
driver and then arguing the federal remedy should be exhausted.The dispute is between two physicians for the
employer.We do not read the federal regulation
to require Szleszinski to employ the federal dispute resolution procedure when
the dispute is between two physicians for the same party.[5]Because of this, and because the WFEA does
not explicitly require exhaustion of administrative remedies, Szleszinski was
not required to utilize the federal dispute resolution procedure prior to
initiating his WFEA action.

Whether
Midwest is an Employer under the WFEA

¶22Under the WFEA, “no employer, labor organization, employment
agency, licensing agency or other person may engage in any act of employment
discrimination ….”Wis. Stat. § 111.321.LIRC ruled that Midwest was an employer
under the WFEA.Midwest contends this
is unsupported by facts of record, it is neither an employer nor an “other
person,” and the WFEA therefore does not apply to it.If we agreed with Midwest, this would be an alternate basis for
affirming LIRC’s decision.However, we
conclude regardless of whether Midwest could be considered an employer, it is
at least an “other person.”

¶23Based on its reading of Flowers v. South Cent. Wis. Joint
Apprenticeship & Training Comm. (LIRC, 06/21/85), Midwest asserts
that “other person” “is not intended as a catch-all to ensnare any other entity
not specifically enumerated in the statute,” including incorporated legal
entities such as itself.Midwest’s
reliance on Flowers is misplaced.[6]

¶24South Central was an advisory body for the State Division of
Apprenticeship and Training (the division).South Central “monitors the progress of apprentices and makes
recommendations to [the division] on the completion of apprenticeship
indentures or for cancellation of such indentures.”Flowers filed his claim against South Central after his
“apprenticeship indenture” was terminated.The ALJ ruled he had been terminated for cause, not racial
discrimination as Flowers alleged.

¶25LIRC, however, went another direction and ruled that the WFEA
did not apply to South Central because it was not an employer, a licensing
agency, or an “other person.”There was
no real dispute over its status as an employer—it was not one—but Flowers had
argued it was a licensing agency.LIRC
rejected that idea, ruling that a “licensing agency” necessarily refers to a
unit or bureau of the government.South
Central was a non-governmental group.Moreover, LIRC determined, it was ultimately the division that
controlled Flowers’ apprenticeship, not South Central, even though the division
took recommendations from South Central.

¶26Turning to whether South Central was an “other person,” LIRC
ruled it was not:

[Wis. Stat. § 990.01(26)]
defines person to include “… all partnerships, associations and bodies politic
or corporate.” [South Central is none of these.]

Moreover, the Commission considers that in this statute
the term “person” is used in its individual sense, as a contract to the
agencies, organizations and business entities listed immediately before
“person.”Otherwise, individuals would
not be prohibited from discriminating.The Commission believes the Legislature did not intend to exclude
individuals from this prohibition.

Midwest focuses on the latter
paragraph to imply that “other person” necessarily refers to a human being.

Notwithstanding the general suggestion … that the
“person” language might reach non-employer entities that affect employment
opportunities, the Flowers decision is a narrow and specific
declaration that this possibility does not exist in the specific case of
non-governmental organizations which make the determinations affecting decisions
of governmental licensing organizations.

….

The Commission’s decision need not and should not be
extended beyond this specific kind of situation.

¶28 Midwest is not a non-governmental organization that makes
determinations affecting decisions of government licensing organizations.Flowers is inapplicable here.

¶29Rather, “the commission has consistently construed the coverage
of the [W]FEA broadly, holding that a ‘person’ other than an employer, labor
organization or licensing agency can violate the Act if it engages in
discriminatory conduct which has a sufficient nexus with the denial or
restriction of some individual’s employment opportunity.”Johnson (LIRC, 02/29/96).This is consistent with the supreme court’s
explanation that “the WFEA is a ‘remedial statute … [and] should be broadly
interpreted to resolve the problem it was designed to address.’”Crystal Lake Cheese Factory v. LIRC,
2003 WI 106, ¶46, 264 Wis. 2d 200, 664 N.W.2d 651 (quoting McMullen
v. LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)).

¶30Midwest’s actions have “a sufficient nexus with the denial or
restriction of” Szleszinski’s employment opportunities.Employees of Transhield drove only for
Midwest, and Midwest had the power to reject drivers.Therefore, if Midwest disqualified a driver, despite the fact
that Transhield otherwise approved of the driver, the driver could not work
because there was no other company for which to haul.Thus, Midwest’s qualification decisions are directly related to a
Transhield driver’s employment opportunities.But even if Midwest is not an employer, we would hold that it is at the
very least an “other person” under the WFEA.Any interpretation of the WFEA that would exclude Midwest from its
application would allow Midwest to do indirectly what Transhield—who Midwest
argues is the real employer—cannot do directly, and “ignores the purpose of the
act and its intended liberal construction.”See Johnson (LIRC, 02/29/96).

Whether
Midwest has a Valid Safety Defense

¶31Under the WFEA, it is not discrimination if an employer takes
an action, such as refusal to hire or termination of employment, when the
nature of the disability is “reasonably related to the individual’s ability to
adequately undertake the job-related responsibilities of that individual’s
employment, membership or licensure.”Wis. Stat. § 111.34(2)(a).Moreover, in the case of common carriers,
the profession’s “special duty of care may be considered in evaluating whether
the employee or applicant can adequately undertake the job-related
responsibilities of a particular job ….”Wis. Stat. § 111.34(2)(c).However, “this evaluation shall be made on
an individual case-by-case basis and may not be made by a general rule which
prohibits the employment or licensure of individuals with disabilities in
general or a particular class of individuals with disabilities.”Id.

¶33To receive federal approval as an interstate carrier, 49 C.F.R.
§ 391.43(a), states drivers’ physicals “shall be performed by a licensed
medical examiner ….”The results of the
exam are then to be recorded on an exam form like the one included in the
Code.49 C.F.R. § 391.43(f).Both subsections, read together, imply
drivers will have actual, face-to-face contact with the doctor or other
examiner.Thus, it appears that under
the operative Code language, a paper review of the driver’s medical history is
insufficient.

¶34Midwest and LIRC suggest that Windhorst’s report reveals
Szleszinski could not drive safely.We
disagree and, moreover, we conclude Windhorst’s “opinion” is an insufficient
report as a matter of law under the Code, which requires actual examination of
the patient.Windhorst’s opinion was
merely a conduit for application of a Department of Transportation conference
report that never became a regulation.

¶35Windhorst’s report is also insufficient under the WFEA because
the act requires a case-by-case assessment of each individual.Windhorst did not make an individualized
determination about Szleszinski’s ability to drive, but recommended
disqualification simply the because the Department of Transportation report
said that all Wilson’s patients should be disqualified.While Midwest claims this constituted an
individualized assessment because Windhorst reviewed Szleszinski’s individual
records, Windhorst stated that test results would be irrelevant to his
determination whether to disqualify Szleszinski.In other words, Windhorst had no plans to rely on an individualized
assessment of Szleszinski’s abilities when the Wilson’s diagnosis was, in
Windhorst’s mind, determinative of the outcome.

¶36Indeed, LIRC concedes Windhorst did not perform an individual
assessment of Szleszinski but it argues that its decision should stand because
federal safety regulations prevail over lesser state standards.We reiterate, however, that the federal
regulations require a physical examination—something Windhorst did not
provide.His report therefore cannot be
considered a valid basis for a determination of Szleszinski’s fitness to
drive.The only doctor who conducted a
physical exam on Midwest’s behalf after the erroneous driving reports declined
to disqualify Szleszinski absent further testing.

¶37Moreover, the federal regulations do indeed list some diseases
and conditions that will, in fact, result in blanket disqualification, such as
diabetes mellitus, 49 C.F.R. § 391.41(b)(3), and myocardial
infarction.49 C.F.R.
§ 391.41(b)(4).We might be more
inclined to accept LIRC’s federal supremacy argument if a listed disease or
condition were involved.Wilson’s
disease, however, does not result in automatic disqualification of a driver
under the Code.

¶38Because Windhorst’s evaluation is invalid as a matter of law,
it should not have been considered by Midwest in its qualification
determination or by LIRC at the hearing.Thus, there is no credible evidence to support the determination that
Szleszinski was unfit to drive because both Choucair and Carlson, plus at least
one private physician, thought he was qualified.Indeed, despite all the discussion of the impact of Wilson’s
disease on the body, no one provided any evidence that Wilson’s was the reason
Szleszinski was swerving on two occasions—which is what prompted Midwest’s
action in the first place.

¶39To the extent that the ALJ, LIRC, and trial court decisions
dismissed Transhield Trucking and/or Transhield Leasing Company from the case,
we do not reach those determinations, because Szleszinski never challenged
those parties’ dismissal.In all other
respects, the judgment is reversed.Additionally, the ALJ had awarded costs and attorney fees to
Szleszinski.Accordingly, we remand for
a determination of: (1) Szleszinski’s attorney fees and costs
through the date of the ALJ’s decision; (2) whether Szleszinski is entitled to
fees and costs for proceedings following the ALJ’s decision; and (3) if
Szleszinski is entitled to fees and costs for proceedings beyond the ALJ’s
decision, what the reasonable amount is.

By
the Court.—Judgment reversed in part and cause remanded with directions.

[1] Szleszinski
initiated this action but after his death, his estate was substituted.We will refer simply to Szleszinski
throughout the opinion.

[2] All
references to the Wisconsin Statutes are to the 2003-04 version unless
otherwise noted.

[3] All
references to the Code of Federal Regulations are to the 2005 version.

[4] To
the extent Midwest claims Choucair concluded Szleszinski had “serious” neurological
deficits, the record citation it provides does not support such a conclusion.

[6] We
are particularly appreciative of the State Law Library, which retrieved copies
of the LIRC decisions for us.Midwest
was not required to provide these decisions, but as they are less readily
accessible than regular case and statutory law, it would have been prudent of
Midwest, which relies on the decisions so heavily, to provide them to us.

[7]Johnson
involved a complaint against Central Regional Dental Testing Service and the
State Department of Regulation and Licensing.Johnson alleged that the test administered by the Service worked to
prevent minorities from becoming licensed in dentistry.LIRC relied on Flowers and
rejected the Service as a respondent because it was an independent testing
agency that provided test results for multiple states and the states ultimately
set their own criteria for analyzing and applying the results into a licensing
scheme.